Chapter 3

Hearsay, defendants’ statements and co-defendants’ statements

Co-defendants’ statements

Introduction and background

3.88This part of our report covers co-defendants’ statements. Two main issues are considered: the use, by a co-defendant, of a statement offered by the prosecution in respect of another defendant under s 27; and codification of the common law currently preserved by s 12A.

3.89Co-defendants in a joint trial may run “cut-throat” defences where the defence of each is that the other committed the offence. In such circumstances, a co-defendant is likely to wish to point to evidence that implicates the other in order to bolster their own case. In a joint trial, this can include a statement made by a co-defendant that has been offered by the prosecution under s 27(1).

3.90The Law Commission had originally proposed that a statement admitted under s 27(1) should also be admissible against a co-defendant, changing the general common law principle that one defendant’s statement cannot be used to implicate another defendant in the same proceeding.222 However, the Select Committee was concerned that this would “unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and complexity of many joint trials”.223 The Select Committee amended what became s 27 so that such statements were not admissible against co-defendants.

3.91In doing so, the Select Committee mistakenly believed it was maintaining the common law position.224 However, concerns were raised by commentators that the amendment did not capture two common law exceptions relating to joint criminal enterprises and acceptance by a co-defendant, and the Evidence Amendment Act 2007 was subsequently enacted to insert the new s 12A (discussed further at paragraph 3.108) to preserve these exceptions.

Co-defendant’s use of a statement offered by the prosecution under section 27

3.92 Section 27 has resulted in contradictory judgments in the High Court as to whether a co-defendant can rely on a statement offered under that section. We have received submissions from the judiciary, one firm holding a Crown Solicitor’s warrant and an individual suggesting that the position be clarified. The three cases directly relevant to this issue are R v Vagaia (No 2), Kupa-Caudwell v R and Leslie-Whitu v R.225

3.93In R v Vagaia (No 2) counsel for a defendant (D2) wished to refer to an out of court statement by a co-defendant (D1) in their closing address to the jury. D1’s statement was unhelpful to D1 but helpful to D2. Asher J held that D2 was entitled to use D1’s statement for his benefit in closing:226

This is because in such circumstances the evidence is not being used “against” a co-defendant. It is being used, instead, “for” a co-defendant and indeed “by” a co-defendant. Section 27(1) does not contain any prohibition on portions of an accused’s statement elicited by the prosecution being used for, rather than against, a co-accused.

3.94His Honour also found that once a relevant statement has passed through the admission “portal”, D1 had accepted its admissibility and did not need another opportunity to challenge it.227

We add, however, that we are not sure that Asher J was right to suggest that there was no objection to D2 using D1’s admission in closing where the admission had been introduced by the prosecution.

3.96The Court expressed its concern about Asher J’s observation regarding the need for D1 to challenge a statement in this manner:229

[A]lthough D1 may not have objected to the prosecution introducing the statement, D1 may do so if aware that the statement is also to be used in a cut-throat way. If the statement is simply referred to by D2’s counsel in closing, D1 by then will have lost the opportunity to challenge admissibility which D1 may have done if aware of the use to which it would be put.

3.97To address this disadvantage to D1, the Court suggested that the Act’s hearsay notice provisions could be applied to the admission of evidence as part of D2’s case.230 The Court stated that this was consistent with the traditional view that evidence led by the prosecution in D1’s case is not necessarily evidence in D2’s case.231 It is also consistent with the trial judge’s direction to the jury that they should operate on the basis that they are considering three separate trials, albeit held together.232

3.98 The Court acknowledged the Supreme Court’s statement in Hart v R that generally evidence will be admissible for all purposes (absent limited use provisions),233 but noted that it did not concern evidence in a co-defendant’s trial.234

3.99 In Leslie-Whitu v R the High Court applied the Court of Appeal’s suggestion, with Woolford J concisely summarising his conclusions as follows:235

(a) Multi-defendant trials are trials within a trial. The admissibility of evidence must be determined in respect of each co-defendant individually.

(b) Assuming it is being offered for its truth, the out-of-court statement of a defendant who does not give evidence in court is hearsay evidence. It is prima facie inadmissible under s 17.(c) Section 27(1) provides an exception to the hearsay rule – the prosecution may offer the statement of a defendant as part of the prosecution evidence in respect of that defendant. It is therefore admissible in the defendant's trial.(d) The s 27(1) exception does not extend to use of the statement in the case of a co-defendant. The statement cannot be offered by the prosecution in the co-defendant's case, so it does not form part of the evidence in the co-defendant's trial.(e) The co-defendant may, however, seek to offer the statement as part of their own defence. The hearsay statement of a defendant will be admissible in a co-defendant's trial if it can reasonably be considered to be reliable under s 18(1).

3.100 The differing approaches by the High Court in R v Vagaia (No 2) and Leslie-Whitu v R seem to reflect different views on the status of evidence in joint trials. The view in R v Vagaia seems to be that, as the evidence is already admitted in the joint trial, the co-defendant should be free to use it (absent any relevant limited use provision).236 The view in Leslie-Whitu v R, on the other hand, is that the prosecution’s proffering of D1’s statement only makes the statement admissible in D1’s case; it does not make D1’s statement automatically admissible in D2’s case. Admissibility in D2’s case must therefore be independently determined.237 If D1 does not give evidence, the statement will be hearsay and only admissible in D2’s case if it passes the reasonable assurance of reliability test in s 18 (the necessity criterion will be satisfied as D1 is not compellable to give evidence). An out of court confession by a defendant is likely to be reliable as a statement against his or her interest.238 We referred to discussion about the interpretation of “against” at paragraph 3.46.

3.101We believe that the approach in Leslie-Whitu v R more accurately reflects the status of evidence in a joint trial. In R v McKewen (No 2) McCarthy P stated that:239

In a trial of two persons charged jointly the jury are required to consider the case against each independently of the case against other, for they are two separate trials, though taken together.

3.102In Ngamu v R Chambers J also noted the fundamental nature of a joint trial as “where each accused is entitled to be judged individually, solely on evidence admissible against him or her”.240 This is reflected in standard jury directions. In R v M the Court of Appeal held that a trial judge must direct the jury on two matters in relation to an out of court statement of a defendant:241

An out of court statement of one defendant is not evidence in relation to a co-defendant (the situation now codified in s 27(1)).

Whether the Crown has proved its case beyond reasonable doubt against a particular defendant must be determined only by reference to the evidence admissible in respect of that defendant.

3.103This was applied by Winkelmann J in R v Naea who also noted that it has become best practice to repeat this direction before any evidence is given about the statements of co-defendant in a joint trial.242

3.104We agree with the reasoning in Leslie-Whitu v R and Kupa-Caudwell v R that the hearsay provisions provide an appropriate means of determining admissibility for the following reasons:

It is an accurate characterisation of the evidence (an out of court statement by a person who is not a witness).

The requirement of notice in s 22 will provide D1 with a complete picture on how his or her out of court statement will be used, allowing an informed decision as to whether to challenge the prosecution offering this statement in evidence (for example under ss 28–30 of the Act).

If D1’s statement is admissible by virtue of s 18(1) in D2’s case, it will be admissible in its entirety, subject to any other exclusionary rule. This means that the prosecution will be able to rely on aspects that are unfavourable to D2’s case, ensuring D2 cannot selectively rely on those parts that are favourable to him or her. It also ensures that the jury is provided with the context in which the statements were made, assisting in its assessment of the weight to give such statements.

3.105There are a number of options to address this issue. One option suggested to us is to amend s 27(1) to read: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but is not admissible in relation to any co-defendant in the proceeding.”243 The phrase “in relation to” is broad. There is a risk that this could be interpreted as not only preventing the prosecution from seeking to admit the statement in D2’s case, but also preventing D2 from doing so.

3.106A second option is to amend s 27 to make it clear that subs (1) does not affect the admissibility of statements by a defendant offered by a co-defendant.

3.107The third option is to do nothing. This is our preferred option. The conflicting judgments in the High Court appear to reflect different views as to the status of evidence in a joint trial, and not problems with the drafting or interpretation of s 27. As set out in our introductory chapter, our approach to this review has been to recommend change only where there is a problem with how a provision is operating and it appears there is no room for the courts to correct the approach. We note that the Court of Appeal has also set out its preliminary view on the correct approach to resolve the issue, with which we agree. We therefore do not recommend any change to s 27 in response to this issue.

Common law preserved by section 12A

3.108 Section 12A provides:

12A Rules of common law relating to statements of co-conspirators, persons involved in joint criminal enterprises, and certain co-defendants preserved

Nothing in this Act affects the rules of the common law relating to—

(a) the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises; or(b) the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant.

3.109Section 27 is expressly made subject to s 12A.

3.110Our understanding is that s 12A was always intended to be a temporary measure, with codification to be considered during the first review of the Act. We agree that codification is desirable and set out our recommendations below.

Joint criminal enterprises

3.111 The basis for the exception in s 12A(a) is that of implied agency. A member of a joint criminal enterprise is deemed by law to have implied authority for other members of that enterprise to act or speak to further the common purpose.244 The Court of Appeal helpfully set out the three threshold issues that a judge must determine in R v Messenger:245

there was a conspiracy or joint enterprise of the type alleged;

the defendant was a member of that conspiracy or joint enterprise; and

the statements were made and / or the acts were done in furtherance of the conspiracy or joint enterprise.

3.112We propose that these threshold issues be codified in the Act. This requires consideration of two secondary issues. First, the standard that must be reached before the threshold issue is adequately satisfied; second, whether the Act should prescribe the type of evidence a judge may (or must) consider when determining these issues. Both these secondary issues have generally been settled in the case law, which is set out below.

Existence of a conspiracy or joint enterprise

3.113 The standard for this first threshold issue is “reasonable evidence”.246 Reasonable evidence is “evidence which of itself would not sustain a verdict of guilt but which is of such a nature that the Judge considers it safe to admit the evidence of a co-conspirator”.247 The existence of a conspiracy or joint enterprise must be shown to this standard without the use of hearsay evidence.248 However, an out of court statement that is not being used to prove the truth of its contents is not hearsay. For instance, a statement may provide evidence of a person’s state of mind that allows a judge to infer the existence of an illegal common enterprise:249

Statements made by other persons about what they are intending to do, against the background of their statements about what they have done, however, can be led as evidence of the state of mind of those other persons at the time of speaking. Such statements are led not to prove the truth of the participation of a person who is not a party to the conversation, but as facts from which the existence of the agreement or combination to engage in an illegal common enterprise may be inferred. The existence of a conspiracy can thus be shown by the statements of all alleged participants, including what they have said about the accused.

3.114The Crown need not prove every detail of the conspiracy or joint enterprise, but simply that it is of the kind alleged in general terms.250

The defendant’s membership in the conspiracy or joint enterprise

3.115The standard for the second threshold issue is also “reasonable evidence”. The defendant’s membership must be shown to this standard independently of statements that are made in the defendant’s absence. That is, the defendant’s membership of a common enterprise cannot be shown just by what the conspirators said when the defendant was not there.251

Furtherance of conspiracy or joint enterprise

3.116 The cases do not specify a standard or articulate the type of evidence that may be considered to establish furtherance of conspiracy or joint enterprise. This threshold issue is different from the other two in that this element can be determined by reference to the statement itself whereas the defendant’s participation in a common enterprise requires external evidence. However, case law does note that the common purpose must be continuing at the time of the act or statement in order for it to be said or done for the purpose of advancing the common design.252 Statements recording what has been successfully or unsuccessfully completed do not further the common purpose, and therefore do not fall within this exception.253 Furthermore, statements made and acts done after the defendant has ceased to be a member of the conspiracy or joint enterprise do not fall within the exception.254

3.117We propose a new provision in subpart 1 of Part 2 (hearsay evidence) providing for the admissibility of hearsay statements of co-conspirators. This would provide that a hearsay statement is admissible against a defendant if:

there is reasonable evidence that there was a conspiracy or joint enterprise;

there is reasonable evidence that the defendant was a member of that conspiracy or joint enterprise; and

the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

3.118This provision should be subject to the notice provision in s 22 so the person seeking to adduce the evidence (likely to be the prosecution) is required to give notice as to the reasons why they think the three threshold issues above are satisfied. We also recommend amending s 27(1) to clarify that the restriction on admissibility in relation to co-defendants is subject to the new provision.

3.119We do not propose that the new provision specify the types of evidence that a judge may or must consider in determining the above matters. Provisions elsewhere in the Act do not specify this, and it would be anomalous for this provision to do so.

R6 We recommend deleting s 12A and inserting a new provision in subpart 1 of Part 2 that provides a hearsay statement is admissible against a defendant if:

there is reasonable evidence that there was a conspiracy or joint enterprise;

there is reasonable evidence that the defendant was a member of that conspiracy or joint enterprise; and

the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

R7 We recommend that this provision should be subject to the notice provision in s 22, and s 27(1) should be amended to clarify that the restriction on admissibility in relation to co-defendants is subject to the new provision.

Statements made by defendants in the presence of co-defendants

3.120Section 12A also preserves the common law relating to “the admissibility of a defendant’s statement against a co-defendant in circumstances where the defendant’s statement is accepted by the co-defendant”. At common law, the admissibility of such a statement hinged on whether the co-defendant “accepted” the statement of the defendant. As outlined in the discussion above at paragraph 3.56 regarding the admissibility of allegations put to a defendant under s 27(1), the basis for admissibility was that the co-defendant, by words or conduct, adopted the statement as his or her own.

3.121Absent s 12A, the Crown has (at least) two avenues to seek admission of the defendant’s statement in the case of the co-defendant. First, under the hearsay provisions (as discussed above under co-defendant’s use of statements), or second, where the co-defendant’s response to the statement is admissible under s 27(1) (as discussed above).

3.122With the liberalisation of the hearsay rule and the advent of s 27(1), there does not appear to be a continued need for this exception. A defendant is non-compellable and thereby unavailable as a witness under s 16(1). The statement will therefore be admissible in the co-defendant’s case provided it is both relevant (s 7) and sufficiently reliable (s 18). Alternatively, s 27(1) provides a route to admissibility if a co-defendant makes an assertion amounting to a “statement” in response. Given there are principled provisions dealing with the admissibility of such statements, we are unconvinced that there is a continued need for this common law rule and do not recommend its retention in the Act.